the New York Hospital, and that she had worked at Cornell for
thirteen years with neither complaint nor comment.
Cornell also denies that the circumstances of her discharge
could give rise to an inference of discrimination, since it
denies that she was replaced by substantially younger workers. It
claims that of the four radiologists hired immediately after
plaintiff, one was substantially older, and a second was five
years younger, making this doctor 41 at the time of plaintiff's
termination. Therefore, Cornell suggests, plaintiff cannot show
that she was replaced by a person not in the protected class.
Plaintiff, however, claims that three of the four replacements
were substantially younger than she, which could support an
inference of discrimination. (Plaintiff's Affidavit ¶ 21 n. 3).
See also, O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308, 313, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996).
Accordingly, plaintiff has established the "de minimis" burden of
a prima facie case under the McDonnell Douglas framework.
Fisher, 114 F.3d at 1340 and n. 7.
2. Non-discriminatory Reasons
Because Dr. Maniatis has made out a prima facie case, the
burden shifts to Cornell to offer legitimate, nondiscriminatory
reasons for her termination. Hicks, 509 U.S. at 509, 113 S.Ct.
at 2748; Fisher, 114 F.3d at 1335. Cornell must articulate a
reason that "if true, would connote lawful behavior," Greenway
v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2nd Cir. 1998), and it
has done so. Cornell claims that plaintiff was terminated because
she was part-time and, due to her private practice, her hours
were inflexible; because she was not contributing to the
department's teaching and research mission; and because she was
not adequately trained in the technologies Cornell now requires
for employment in its newly reorganized radiology department.
Each of these reasons would alone be a legal and sufficient
reason to terminate an employee. Therefore Cornell has set forth
legitimate and non-discriminatory reasons for its decision to
terminate its employee. Pursuant to McDonnell Douglas, the
burden now returns to plaintiff to raise a triable question of
fact about whether defendant's asserted reasons are a pretext for
discrimination. 411 U.S. at 804, 93 S.Ct. at 1825; Hicks 509
U.S. at 510-11, 113 S.Ct. at 2749; Fisher 114 F.3d at 1336.
3. Pretext for Discrimination
Plaintiff asserts that Cornell's reasons are pretextual. To
survive summary judgment, however, plaintiff's burden is not
merely to show that the proffered reasons are pretextual, but
that the reasons offered are a pretext for discrimination. As the
U.S. Supreme Court wrote in Hicks, "[a] reason cannot be proved
to be a `pretext for discrimination' unless it is shown both
that the reason was false, and that discrimination was the real
reason." 509 U.S. at 515, 113 S.Ct. at 2752 (quoting Burdine
450 U.S. at 253, 101 S.Ct. 1089) (emphasis in original). See
also, Fisher 114 F.3d at 1337. Therefore, for plaintiff's claim
to survive summary judgment, she must raise a triable issue of
fact as to whether Cornell acted with discriminatory intent.
Plaintiff has introduced no evidence of discriminatory intent on
Cornell's part. The record reveals no derogatory comments, no
incriminating writings, no witnesses who attest to defendant's
Plaintiff relies solely on the statistical evidence of Harriet
Zellner, Ph.D. Dr. Zellner analyzed terminations in Cornell's
radiology department over an eighteen-month period after Dr.
Sostman became chief of radiology. She concluded that there was a
statistically significant correlation between doctors terminated
and doctors age 40 and above. (Ex. Q to Kahn Affidavit ("Zellner
Report")). She found that doctors over age 40 were terminated at
a rate greater than chance alone would predict. Id. Dr. Zellner
acknowledges, however, that the statistical evidence is
insufficient to establish intent. (Zellner Declaration ¶ 10;
See Zellner Deposition at 60-61). The statistically significant
correlation the Report claims for its study involves the Fisher
Exact test, which does not control for any variables other than
age and termination rate. Id. Any correlation indicated by this
test is irrelevant to the question of causation or motive. Dr.
Zellner herself testified at her deposition that "[a] disparate
treatment claim should be tested in a multivariate framework . .
."; i.e., one that controls for more than two variables. Id. As
the test used in the Report does not conform to this standard, it
has no probative value for the disparate treatment claim. See
Raskin v. Wyatt Co. 125 F.3d 55, 67-68 (2nd Cir. 1997); See
Also Sheehan v. Daily Racing Form, Inc. 104 F.3d 940, 943 (7th
Cir. 1997). Without evidence of discriminatory intent,
plaintiff's claim of disparate treatment fails.
C. Disparate Impact Claim
In her Memorandum of Law in Opposition to Cornell's motion for
summary judgment, plaintiff, for the first time, raises a
disparate impact claim. A disparate impact violation occurs
pursuant to the ADEA, 29 U.S.C. § 621 et seq., when the actions
or policy of a defendant have a disproportionate adverse effect
on members of the protected class — in this case, workers over 40
— even in the absence of discriminatory intent.
Cornell contends that because plaintiff did not raise this
matter either in her pleadings or before the EEOC, this court has
no jurisdiction to hear this claim. Although plaintiffs asserting
employment discrimination claims must normally exhaust their
remedies with the EEOC before their claims will be heard by a
district court, Butts v. City of New York Dept. of Housing,
990 F.2d 1397, 1401 (2nd Cir. 1993), courts may make an exception for
claims that are "reasonably related" to the allegations in the
EEOC charge. Gomes v. Avco Corp., 964 F.2d 1330, 1334 (2nd Cir.
1992). Because plaintiff's claim under a disparate impact theory
is arguably "reasonably related" to her intentional
discrimination claim, this Court will analyze this claim as well.
Disparate impact claims under the ADEA, like disparate
treatment claims, are treated the same as claims under Title VII
of the Civil Rights Act. Fisher, 114 F.3d at 1335. Plaintiffs
must establish the existence of a non job-related but facially
neutral employment practice that disproportionately causes
adverse effects for a protected class at a statistically
significant level. See 29 U.S.C. § 623, 626; Wards Cove
Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d
733 (1989); Griggs v. Duke Power, 401 U.S. 424, 431-33, 91
S.Ct. 849, 853, 854, 28 L.Ed.2d 158 (1971). The classic example
of this form of discrimination, found in Griggs, is a test
which is unrelated to actual job performance, but is nonetheless
administered to employees as a prerequisite for promotion and
results in far fewer employees from a protected group being
promoted into more attractive and lucrative jobs. 401 U.S. at
430, 91 S.Ct. 849.
Dr. Maniatis correctly asserts that statistical evidence is
often the lynchpin of disparate impact claims, since it is the
pattern that is being challenged, rather than a discrete
discriminatory act. In that regard, plaintiff relies on the
Zellner Report as proof of disparate impact. For the purposes of
this decision, we assume that the Zellner Report would be
admissible evidence, despite defendant's challenges to its data
and methodology. However, evidence of statistical disparities is
not the only element necessary to make out a claim. Plaintiff
must identify a specific, facially neutral practice that results
in the disparity:
Our disparate-impact cases have always focused on the
impact of particular hiring practices on employment
opportunities. . . . As a general matter, a plaintiff
must demonstrate that it is the application of a
specific or particular employment
practice that has created the disparate impact under
attack. Such a showing is an integral part of the
plaintiff's prima facie case under Title VII.
Wards Cove, 490 U.S. at 657-8, 109 S.Ct. at 2124-5 (emphasis in
original). See 42 U.S.C. § 2000e-2(k)(1)(a)(i); Watson v. Fort
Worth Bank & Trust 487 U.S. 977, 994, 108 S.Ct. 2777, 2788, 101
L.Ed.2d 827 (1988) ("The plaintiff must begin by identifying the
specific employment practice that is challenged") (O'Connor, J,
plurality opinion). Dr. Maniatis has not only failed to introduce
any evidence of a facially neutral employment practice of
defendant, she has failed even to identify or allege such a
practice. Thus she has failed to establish that element of her
In addition to identifying a specific practice that results in
the discriminatory impact, a plaintiff in a disparate treatment
action must demonstrate that there is a causal link between the
challenged practice and the disproportionate outcome. Wards
Cove, 490 U.S. at 656, 109 S.Ct. at 2124. Again, plaintiff has
failed to allege any policy that resulted in the statistical
imbalance to which the Zellner Report attests, and has therefore
failed to demonstrate a causal link between any of Cornell's
policies and this imbalance. Therefore, even assuming the Zellner
report offers admissible evidence demonstrating that a
disproportionate number of workers in the protected class have
been let go by Cornell, plaintiff has failed to make out the
other necessary elements of the claim. Accordingly, she has
failed to raise a triable issue of material fact regarding her
claim of disparate impact sufficient to defeat summary judgment.
Accordingly, because there is no disputed issue of fact in the
record as to whether plaintiff was terminated because of her age,
defendant's motion for summary judgment in its favor is granted.